Joga Singh vs State of Punjab

Iqbal Singh, J.

This is a writ petition under Article 226 of the Constitution of India for the issue of a writ of habeas corpus directing the respondents to produce Punjab Police Constables Rajwinder Singh, Mukhtiar Singh and Baljit Singh, who were alleged to have been arrested and whose whereabouts were not known.

Notice of this petition was issued to the respondents and a reply has been filed by respondent No. 2 Mr. Lok Nath, Superintendent of Police, Jalandhar, in which it has been admitted that Constables Rajwinder Singh and Mukhtiar Singh had been arrested on 4.9.1992 by Sub Inspector Ajit Singh of the C.I.A., Staff, Jalandhar, in First Information Report No. 187 dated 31.10.1991, under Sections 307, Indian Penal Code, 4/5 Explosive Act and 3/4/5 of the Terrorist & Disruptive Activities (Prevention) Act, 1987, registered at Police Station, Sub Division 4, Jalandhar, and that they had escaped from the police custody during the course of an encounter with terrorists when they were being taken for the recovery of explosives as per their disclosure statements. It has, however, been denied that Baljit Singh had been forcibly taken by them on 28.8.1992 from Civil Hospital, Sangrur, but it has been claimed that he had been killed on 1.9.1992 in an encounter with the Nakodar Police and explosives and firearms had been recovered from the scene of the encounter.

Vide order dated 19.12.1994, H.S. Bedi, J. directed the learned District and Sessions Judge, Jalandhar, to conduct an enquiry into the two incidents and send his report to this Court.

The learned District and Sessions Judge, Jalandhar, in his report dated 24.5.1995 held that neither any encounter had taken place nor Mukhtiar Singh and Rajwinder Singh had escaped from police custody. The story by the police has been devised falsely. He further held that it is not acceptable that the two Constables are still absconding; that the police cannot escape its liability merely by saying that they have escaped from police custody; and that, in all probability, their lives have been snuffed by the police. As regards Baljit Singh, the learned District and Sessions Judge held that he has not died in a genuine encounter and that the version has been concocted by the police in this respect.

Reply to the report of the learned District and Sessions Judge, Jalandhar, was also placed on record by way of affidavit of Mr. Dinkar Gupta, the then Senior Superintendent of Police, Jalandhar. In the said reply it was stated that the learned District and Sessions Judge has not correctly appreciated the version of the respondents and the findings given by him are not sound and sustainable on the basis of the material placed on the record and that the report is liable to be ignored. It has been further stated in the reply that the learned District and Sessions Judge has not recorded the evidence of independent witnesses during the course of enquiry held by him and that only interested witnesses were examined. It is further alleged that the report submitted by the District and Sessions Judge, Jalandhar, is based on surmises and conjectures and that the same was submitted without evaluating the evidence properly.

I have heard Mr. Navkiran Singh, Advocate, learned counsel for the petitioners, Mr. A.G. Masih, the learned Assistant Advocate General, Punjab, and Mr. M.L. Merchea, Advocate, the learned counsel for the respondent No. 2 and have carefully perused the records.

I do not find any force in the submission of the leaned counsel for the respondents that the report submitted by the learned District and Sessions Judge, Jalandhar, is liable to be ignored. In my opinion, it is wellreasoned and there is nothing on the record to discard it. The report is accordingly, accepted for the reasons given therein.

In my opinion, it is a fit case which should be further investigated in the light of the report submitted by the learned District and Sessions Judge. Accordingly, the C.B.I. is directed to register a case on the basis of the report dated 24.5.1995 submitted by the learned District and Sessions Judge, Jalandhar, and complete the investigation within nine months.

Now coming to the point of grant of compensation to the petitioners, the liability of the State arises in such a case for grant of compensation as it is based on strict liability contravention of fundamental rights to which principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. On the findings reached by the learned District and Sessions Judge and in the facts and circumstances of the case, I find it a fit case for grant of compensation to the petitioners for the loss of lives of their sons. In view of the law laid down by the apex Court in the case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others, 1994(1) RCR 18 , the State of Punjab is directed to pay Rs. 3 lacs each to the three petitioners, namely, Joga Singh father of Rajwinder Singh (deceased), Smt. Gurmit Kaur mother of Mukhtiar Singh (deceased) and Surta Singh father of Baljit Singh (deceased).

This petition stands disposed of accordingly.